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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, January 11, 2013

The Court of Appeals continues to give workplace harassment plaintiffs the benefit of the doubt in hostile work environment cases. In this case, it reverses summary judgment in a racial harassment claim that it deems a close call because some of the harassment was not explicitly racial.

Let's start with Rivera, who had a serious personal conflict with Folino, a senior mechanic who ran off with Rivera's wife and also called Rivera a "spic" and "Taco Bell" at least five times from 2003 through 2007. These guys hated each other, in part because of the wife-steal and in part because Rivera is Puerto Rican. Folino also called Rivera these names outside of Rivera's presence. Some of Folina's harassment (staring at Rivera menacingly and tampering with his time card slot, for example) was not explicitly ethnic, however. Then, from March 2006 through September 2007, Folina further harassed Rivera in non-ethnic terms by, for example, swerving his car at Rivera and generally undermining Rivera's ability to do his job. During this time, there was some explicitly ethnic harassment.

The Court of Appeals (Kearse, Lohier and Droney) reverses summary judgment on Rivera's hostile work environment claim. Judge Lohier sets out the dilemma for the Court of Appeals:

From 2003 to 2007, Rivera filed several complaints with RGRTA’s Human Resources Department regarding Folino’s conduct, none of which referenced Folino’s use of ethnic slurs or harassment based on national origin. Indeed, Rivera’s testimony that Folino and others chronically directed ethnic slurs at him is somewhat belied by his early assertions that the “hostile work environment” he experienced was a result of his personal conflict with Folino. For example, one of Rivera’s complaints explicitly attributed Folino’s harassment to their personal conflict, and criticized Folino for “bring[ing] these very personal issues to work . . . causing a very uncomfortable and hostile work environment.” Rivera’s NYSDHR complaint, which, in contrast to prior complaints, asserted that Folino’s conduct constituted national origin discrimination, again made no reference to Folino’s use of ethnic slurs or other ethnically based harassment. If the instances of ethnic name-calling were "sufficiently severe or pervasive to alter the conditions of [Rivera’s] employment and create an abusive working environment,” it is reasonable to expect Rivera to have adverted to them at least once in his lengthy correspondence with RGRTA’s Human Resources Department as well as the NYSDHR.

That's why this case is a close call for the Second Circuit. But the Court decides that the jury should determine what motivated the hostile environment: personal animus or Rivera's national origin. Looking at the harassment "cumulatively in order to obtain a realistic view of the work environment," the Court notes that Rivera testified in sufficient detail that his antagonists called him a "spic" three times and chanted slurs about his national origin about five times. While Rivera's written pre-litigation complaints attributed some of the harassment to personal animus, unlike cases where the Court of Appeals affirms summary judgment because the plaintiff contradicted himself throughout the litigation,

Here, by contrast, Rivera does not allege the occurrence of something that he previously described as not happening. He claimed ethnic discrimination in his 2007 complaint to the administrative agency, as was required for purposes of exhaustion. In his administrative and court assertions he has not been inconsistent in claiming that he was subjected to ethnic slurs. Any variance in those assertions has been in the number of times he was subjected to such slurs. That Rivera did not complain of ethnic slurs to RGRTA may lead a factfinder to find that claim not credible, but there is no real, unequivocal, and inescapable contradiction ... , and matters of credibility are not to be determined on a motion for summary judgment. In addition, ... Rivera’s testimony was corroborated by other independent evidence, including the testimony of Talton.

Since Rivera was not required to show that national origin was the sole reason for the harassment and he presents "(barely) enough evidence -- both in the form of ethnic slurs and the broader bullying and physical harassment" to support a verdict under Title VII, summary judgment was improper. This reasoning highlights Rule 56 in its purest form.

As for Talton, his case is clearer. Co-workers called him racial slurs. Two of them called Talton a "nigger" and a supervisor tole Talton to "get over it, nigger" when he complained about this. Other co-workers also called Talton this slur in physically threatening ways. Talton's testimony was sufficiently detailed to support the claim and his contemporaneous EEOC charge undermines defendant's argument that the allegations lacked enough detail. The Court of Appeals further notes that the word "nigger" is so powerful that it's quite difficult for defendants to claim the lack of any hostile work environment in the face of plaintiff's sworn testimony. So both plaintiffs go before a jury on their hostile work environment claims. It should be quite a trial.